The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests - as some recent literature has indicated - that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.

I'll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits in order to get doctors to be able to freely admit mistakes. So let's just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I'm not exactly creating a straw man. This argument has been made countless times, that it is somehow safer for patients for health care providers to be able to treat patients in a lovey environment where there is no risk of responsibility for medical errors.

First, let's admit that we are all loathe to admit mistakes. I don't think taking away the risk of a malpractice lawsuit - for which the doctor has insurance in most cases - is going to substantially change the frequency of admission of medical errors.

More importantly, where is the justice in being exculpated for causing a life altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a "known risk" of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn't that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be a good idea too.

The Michigan Supreme Court issued an order requiring defendants in medical malpractice lawsuits to challenge deficiencies in Plaintiff's attorneys’ notice of intention to sue and certificate of merit within 63 days of service. This rule also applies to challenges of the qualifications or eligibility of the signer. (The court did allow an "except for good cause" which may lead to a lot of litigation over just how much discretion judges will have with respect to what constitutes good cause.) Perhaps more importantly, an amendment to a certificate of merit now relates back to the original date of the filing of the affidavit.

One problem this rule is intended to rectify is when defendants’ malpractice lawyers intentionally sandbag potentially legitimate objections until after limitations passes and then try to get the case kicked for some procedural deficiency. Now, malpractice plaintiffs with procedural deficiencies can amend so that the statute of limitations does not pass. In other words, substance triumphs over silly procedural nonsense. In my world, this is a good thing.

Depressingly, the short AP story on this ruling characterizes the case in partisan terms that would hit an odd cord with any Maryland lawyer unaccustomed to the injection of party affiliation in reports on appellate court rulings:

Republican Elizabeth Weaver joined Democrats Marilyn Kelly, Michael Cavanagh and Diane Hathaway in supporting the change in the order issued Wednesday. Republicans Maura Corrigan, Robert Young and Stephen Markman opposed the change.

I think I could accurately predict how each Maryland Court of Appeals judge voted in the 2008 presidential election. Still, we are blessed in Maryland to be able to largely keep judges’ voter affiliation and raw politics out of appellate decisions. The difference is that Michigan elects their judges which pushes politics to the forefront. The lesson, as always: judicial elections are foolish. (Parenthetically, retired Baltimore County Judge Dana Levitz made a great argument against judicial elections in the last issue of the University of Baltimore Law Forum. I wrote about the insanity of judicial elections four years ago here and last year here.)

One of the dissenting opinions gets incredibly personal in its attack, arguing that two of the judges contradicted their own positions taken in administrative conferences, encouraging interested parties to go back and watch the online video of the conferences. You would never see this in a Maryland appellate court or a Supreme Court opinion. I had no idea of how civil we are in Maryland until I read this opinion.

You have to read the entire opinion. You can find it here.

In the Tennesseean, an emergency room doctor admits to performing unnecessary tests to avoid malpractice lawsuits:

In my personal practice, if I knew that I couldn't be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient's.

In other words, this doctor admits to ordering tests that can harm and cause risk to a patient - as CT scans and x-rays certainly do - for his own protection to avoid a malpractice lawsuit for which he has insurance.

I'm not sure what is more depressing, the fact that the doctor blithely admits this to a reporter thinking it is an acceptable medical practice to put his own interest ahead of the patient or the fact that there will be no ramifications for this doctor. If a lawyer or an accountant made the same admission - that he/she put their interests first ahead of their clients - the Internet would explode.

Thankfully, the vast majority of doctors put their patients first.

Let's say Barack Obama decides to take a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.

This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)

How, then, can tort reform advocates - who are almost to a person far more 'States rights, get government out of our lives" than I will ever be - support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.

The Baltimore Sun continues to push the idea of medical malpractice cases being placed into some sort of health court. Naturally, as is their practice, the Sun offers no real details and no balance to the editorial besides blaming trial lawyers for everything but the Blizzard of 2010. More problematically, they support a solution without really identifying a problem. What is the evidence of a problem with the judges that are currently handling medical malpractice lawsuits in Maryland? This would seem to be a prerequisite to offering a solution.

The Sun thinks that the governors of this state have nominated judges that cannot understand how to administer medical malpractice lawsuits. Either this is nonsense or we have a gubernatorial malpractice claim against Governors Mandel, Hughes, Schaefer, Glendening, Ehrlich, and O'Malley. I'm going with the nonsense theory myself. It is also silly to suggest that doctors are so vested in this idea. Even if trained malpractice judges are better malpractice judges, I don't think anyone has any idea of whether having malpractice specific judges is going to help plaintiffs or the doctors' lawyers in discovery or at trial.

The Sun goes on to tout the importance of a new "I'm sorry" law so doctors can admit they screwed up. On its face, it sounds okay. There is evidence that patients and their families benefit when doctors disclose medical errors and apologize. But did we do a study as to how these same patients feel when these apologetic doctors admit to their patients what they did but then can make a farce of that admission by denying it publicly later? Will this make a mockery of the victims and the court who sanctions what is going to approach or reach perjury?

The reality is a sympathetic "I'm sorry" when any professional (or even the other driver in a car accident) makes a mistake is going to make it less likely that the victim is going to bring a claim. Doctors should say they are sorry because it helps the patient, themselves and because it is the right thing to do, not because they are given immunity for the apology.

I also don't think the law is going to make much difference. Good, decent doctors (the vast, vast majority) will apologize if they think they make a mistake. Doctors that won't because they fear malpractice probably wouldn't apologize anyway.

http://www.insiderexclusive.com/show-titles/120-medical-malpractice-case-the-emma-mejias-story-

Emma Mejias died a horrible and painful death, on her very first Christmas Eve in 2004, at the hands of 25 doctors and nurses, another victim of medical malpractice. All 25 of them systematically and willfully ordered and administered the wrong drugs for her life-threatening condition called SLOS (Smith Lemli Opitz Syndrome). SLOS is a congenital abnormality, which requires treatment strategies on supplying supplemental cholesterol. Emma was given the Wrong Drug, Questran, not once, but 92 times – yes, 92 times in one month. All of the doctors and nurses knew better.  They were trained to know better. They were some of the world’s leading authorities at the LSU Health Sciences Center in New Orleans. And her doctors had the unmitigated gall to blame Emma’s death on the new resident doctors, rather than take responsibility themselves. Emma remained hospitalized at various hospitals from the date she was born to the day she died, because of the outrageous medical malpractice perpetrated on her by 25 so-called health care professionals, none of whom cared enough to give her the potentially life-saving medical treatment she desperately needed. She suffered enormous physical pain and suffering prior to her death. Today, for the very first time ever on TV, The Insider Exclusive will visit with both Jason and Adrienne Mejais and their lawyer John Hammons, Partner at Nelson & Hammons, who for 30 years has been standing up for people like Emma, a little innocent baby, who never had the chance to stand up for herself.

John Hammons is one of Louisiana’s leading medical malpractice and nursing home negligence lawyers, and is often called upon by individuals as well as by other lawyers to assist them in the most difficult of cases. He has served on the Governor’s Commission on Medical Malpractice, which provided him with significant insight in this area of developing law. John was also among the first lawyers in Louisiana emphasizing the handling of medical malpractice cases three decades ago. He has been at the forefront of precedent-setting cases, and is often invited to speak before legal and medical groups. John holds an undergraduate degree from Northeast Louisiana University and a law degree from Louisiana State University.

Nelson & Hammons has championed the rights of victims of medical malpractice since 1980, having successfully represented hundreds of such patients or their families. With its office in Shreveport, Nelson & Hammons remains committed to quality medical care for its clients and their families as well as obtaining just compensation for those patients who have been seriously injured as a result of substandard medical care. With two attorneys specializing in the handling of medical malpractice, nursing home negligence and related matters, Nelson & Hammons is uniquely positioned to effectively and thoroughly investigate and prosecute such cases.

You can contact John Hammons at 318-227-2401, or www.nelsonhammonslaw.com

The Illinois Supreme Court made big news nationally when it issued its much awaited opinion in Lebron v. Gottlieb Memorial Hospital yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that should be made not by legislatures but by juries.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged the infant Plaintiff’s severe cerebral palsy was caused by the negligence of the hospital, her obstetrician, and a nurse.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on the issue of whether the cap applied, which the trial court granted before the case was tried. Procedurally, this is odd and the dissenting opinion took exception to the idea of deciding this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served taking this path because they both know how the law is going to be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

The Baltimore Sun has an interesting article on the race among lawyers to attract St. Joseph stent lawsuits that includes some quotes from me.